31.

SOUTHERN CROSS UNIVERSITY LAW REVIEW

R J L HAWKE, CONSENSUS AND DISSENT AND THE PROPOSAL FOR AN AUSTRALIAN STATUTE OF RIGHTS[(]

The Hon Justice Michael Kirby AC CMG[((]*

R J L HAWKE AND THE SEARCH FOR CONSENSUS

The Hon R J L Hawke was Prime Minister of Australia between 1983 and 1991. A main theme of his public life was the desirability of resolving conflict and reaching consensus in responding to problems and challenges[1]. His name has become associated in Australia with the search for consensus in legal, industrial and political causes. He pursued consensus as a student, union official, advocate, parliamentarian and, ultimately, as Prime Minister[2]. In government, he strove to achieve a consensus in advancing policies suitable to what he saw as a fair and just democracy.

A vivid example of Mr Hawke's approach to consensus was the industrial relations Accord[3], propounded soon after he became Prime Minister. In the Accord he endeavoured to involve all of the key stakeholders, including the unions and employers, in resolving the main challenges then facing the Australian economy and its industrial relations. In an address to the National Economic Summit, following the 1983 federal election, he explained his approach[4]:

“If a genuine consensus is to emerge it must mean an understanding on the part of all sections of the Australian community of the constraints they will be called upon to accept and the contribution they will be called upon to make to the process of national reconciliation, national recovery and national reconstruction. It will mean a recognition and acceptance of restraint by all sections of the community. It must mean a recognition, a sense of realism, of what can be achieved in the near future. We must all understand that there can be no miracle cures, no overnight solutions. It calls for sustained concerted national effort”.

He declared:

“I think it is just stupid economics for a government to approach economic management from a strand of thinking regarding unions as enemies".

In 1979, in highly successful Boyer Lectures appropriately titled The Resolution of Conflict[5], Hawke explained the principles that underlay his notion of consensus in Australian society. They were principles that probably encapsulated experiences he had gained from his life to that time - most especially as an industrial advocate for the Australian Council of Trade Unions (ACTU) - working towards the compromises and settlements that would resolve industrial conflict, return workers to work, and keep the wheels of industry turning and profits rolling in.

He spoke of creating a "greater degree of positive cooperation" to meet the economic, social, constitutional and international challenges facing Australia. He said: "[c]ooperation can only be the product of understanding; confrontation and conflict are the inevitable and disastrous alternatives"[6]. He went on[7]:

"We need much more tolerance of attitudes genuinely held by groups or generations perceived to be out of kilter with our traditional mores.

...

[N]o-one should assume he or his group is the sole repository of wisdom and rectitude. In most instances there is some real ground for the adoption by people of positions which to others seem unjustified or preposterous. And in most people there is, I believe, ultimately a desire for harmony rather than conflict – to understand this is to take the first step in the resolution of the conflict which is in fact diminishing our community."

For R J L Hawke, this was not merely rhetoric. His words were written in September 1979, in the midst of important weeks in his own life[8]. The ACTU Congress, over which he had presided, was then engaged in a passionate debate over uranium mining. He had arrived at a personal decision to nominate as a candidate for the seat of Wills for the 1980 federal election. The death of his mother, Edith, who had nourished his talents and instilled in him a belief in his capacity to change Australia for the better, also occurred at this time[9]. The sincerity of his yearning for the resolution of tensions and conflict by rational engagement, debate and consensus cannot be doubted.

In his Boyer Lectures, Hawke spelt out his vision of how Australia could best move forward as a free and prosperous nation in a rapidly changing world. It was a kind of public manifesto. He recognised that our central institutions - parliaments, courts and industrial tribunals - secure a kind of resolution, a type of consensus. However, often they do so by adversarial techniques of confrontation, partisan divisions, conflict and tension. Hawke searched for a different means of promoting genuine agreements. My purpose is to explore whether this was a realistic goal. Was it merely window-dressing? Was it desirable?

Almost thirty years later, much has changed. Yet much has stayed the same. Contrary to proposals contained in his Boyer Lectures, State governments remain in place in Australia and all Federal Ministers are still appointed from members of the Federal Parliament[10]. None is appointed from outside Parliament, as Bob Hawke proposed. Nevertheless, the core ideas contained in the lectures merit revisiting, especially because it is possible that they will be influential following the return of a federal Labor government in the 2007 election. Reportedly, that government is committing to exploring responses to a national human rights statute to be introduced during its "first term"[11].

My object is to explore the idea of community consensus. When is it appropriate to seek agreement or compromise? When is it desirable to robustly disagree? When is dissent a proper response? Some contemporary Australian writers have criticised what they see as a diminution of candid and open public debate about legislation, policy, issues and values in Australia[12]. Other public commentators contest this interpretation[13]. Is consensus, in practice, merely an attempt of those with power to cloak their use of power in the garments of agreement so that those who express opposite points of view are drowned out, shamed or intimidated from voicing criticism or seeking to rock the consensus boat? Is this the kind of consensus R J L Hawke had in mind?

THE IMPORTANCE OF CONSENSUS

It is natural, within Australia, that we should strive to reach consensus with our neighbours. We might call it different things – compromise, conformity, bipartisanship, even cooperative federalism.[14] But we can recognise that reaching consensus with others is, in many cases, a critical tool in building and developing the institutions of society and of the world community.

Consensus does not always mean full agreement. Often, it will mean no more than a majority compromise. Majoritarian consensus is pressed on us all the time, and for good reason. Under the Constitution, at less than three yearly intervals, Australians hold Federal Parliaments and Governments accountable to the electors. Despite the issues that divide us in such elections there is consensus over many things. Typically, the contenders attempt to narrow the targets and to concentrate on the issues for popular choice on which they hope they will secure the winning edge. The new Parliament, once elected, chooses the new Government. It does so by numerical majority, not by consensus.

In courts too, whenever there are important divisions, our institutions act by majority. The important decision in the High Court in 2007, striking down an Amending Act of 2006 which had disqualified all sentenced prisoners from voting in federal elections was reached by majority, not consensus.[15] Four Justices (Chief Justice Gleeson and Justices Gummow, Crennan and myself) held that disqualifying prisoners serving sentences of imprisonment of less than three years from the franchise was constitutionally invalid. Justices Hayne and Heydon dissented. There was consensus in the orders favoured by the Chief Justice and by Justices Gummow, Crennan and myself. But there the High Court's consensus ran out. The democratic rule of the majority had to be invoked. The majority opinion prevailed. As was their right and duty, the dissenting judges gave reasons explaining why they differed and why they considered that the difference was important.

In recent times, in federal elections, the primary vote for each of the major Australian political parties has generally declined. Over the five federal elections before 2007[16], a greater number of Australians (on average almost one in every five voters) cast their first vote for an independent or a member of one of the minor parties. Accordingly, well over 50% (in some cases over 60%[17]) of voters in recent federal elections in Australia have cast their first preference for a party different from the one chosen to form the government.

In 1990 when the Hawke Labor Government was re-elected, candidates of the Australian Labor Party (ALP) received 39.4% of the primary vote. The Coalition Government was reelected in 1998 after the Coalition Parties received a combined 39.5% of the primary vote. In February 2002, preferences allowed Mr Mike Rann to form a minority government in South Australia after the ALP received 36.3% of the first-preference votes. Similarly, the Western Australia State election only a year earlier delivered a new Gallop Government although the ALP received 37.2% of the primary vote, an increase of only 1.4% on the vote that had resulted in its defeat in the 1996 State election. As pointed out at the time, that vote was, in turn, an increase of only 0.15% on its performance when the Lawrence Government was defeated in 1993. These developments represent a significant change in the degree of consensus about the elected government expressed in the major political parties in Australia from what existed in the mid-twentieth century.

The distribution of preferences in an election is one way by which a kind of consensus is reached for a particular party or parties to govern. Thus, in the 1998 and 2001 federal elections, no fewer than 185 seats, in aggregate, in the House of Representatives required the distribution of preferences to determine their outcome[18]. Although the final choice in elections may not, therefore, be the first choice of a majority of electors, in Australia, the elected representatives constituting the majority of those returned to the lower house of parliament, when invited to form a government, necessarily exercise their governmental powers for all electors. All governments say that this is what they do. Often it is what they attempt to do. The necessity to face the electors again at regular (and relatively short) intervals means that parties in government frequently attempt to achieve the objectives important for them and their core supporters. But they also keep in mind the consensus that they need to forge with minor parties and independents if they hope to be returned to government in the next election. This is where political consensus over broad directions, principles (philosophies perhaps) becomes very important. Without such consensus, spoken or unspoken, in today's Australia, neither of the major political groupings can win government, whether in the federal, State or self-governing Territory legislatures.

It follows that Australia's political system forces elected representatives to accept compromises and to endeavour to discover a great deal of middle ground across a range of policy areas. In this sense, political consensus and bipartisanship are natural to a modern parliamentary democracy such as that of Australia.

Consensus will not therefore always deliver what a majority of the electors would consider perfect policies. Its object is to produce generally acceptable policies, and laws and programmes that are broadly tolerable, ie not unduly upsetting to the ever-changing majorities in the community that reflect their views in the ballot box every three or four years as the case may be.

CONSENSUS & DISSENT IN THE HIGH COURT

The same is not true of Australia's independent courts, particularly the High Court. Under the Constitution, each judge is independent. Each has an equal voice. This is said to be "all but universally recognised as a necessary feature of the rule of law"[19]. Judges are expected be indifferent to political influence and expediency. Their independence necessarily includes, "independence of one another"[20]. Judicial independence is not provided for the benefit or protection of judges as persons. It is afforded as an institutional protection for the people. It guarantees to every citizen (and also to non-citizens) access to an independent judiciary and legal profession as "the bulwark of a free and democratic society"[21].

As the final appellate court in Australia, disagreement in the High Court is as inevitable as it is common[22]. The Australian Constitution is often obscure. Statutory and constitutional language is often unclear. Discovering the applicable common law is far from an exact science. Special leave to appeal is rarely granted unless there is a reasonably arguable point in the case.

This is why it is misleading to look simply at the rates of dissent and agreement amongst the Justices of the High Court in the outcomes of decided cases[23]. The surprising feature of the decisions of the present High Court is not, in my view, that there are differences but that there are not more differing voices than mine amongst the other Justices, given the controversial questions and inherent disputability of the issues commonly presented for the Court's resolution[24].

Judges may agree in the final result in a case but disagree over the method and reasoning by which they arrive there[25]. Or they may disagree as to the final result even though they mainly agree in the reasons of the other judges. On such matters, statistics (particularly in such relatively small samples) disguise the nuances in the reasons of the judges, which is the way in which the law develops[26]. What is true of the High Court, in this respect, is also true of the other higher courts of Australia.